Author considers the foundations of Niklas Luhmann’s communicative theory in application to the problem of rationality in law. She argues that one of the most important advantages of Luhmann’s approach is the rejection of the subject-centric interpretation of rationality. This sort of rejection makes it possible to consider rationality as an integral property of the legal system which reflects system’s sensitivity to some of incoming agitations. The author analyzes the concepts of “normative closure” and “cognitive openness” and their role in legal rationality justification. The author discusses the positive meaning of paradoxes in law and considers them as a consequence of the law’s open structure.

Keywords:

Luhmann, rationality, theory of communication, paradox, tautology, philosophy of law, epistemology of law

References:

Habermas J.Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy. Cambridge, Massachusets: The MIT Press, 1996. xliii +631 p.